ORDER ON DEFENDANTS' FIRST MOTION TO COMPEL
PRODUCTION OF PLAINTIFF'S CORI (DKT. NO. 75) &
PLAINTIFF'S MOTION TO QUASH SUBPOENA AND MOTION FOR
PROTECTIVE ORDER (DKT. NO. 77)

DONALD
L. CABELL U.S.M.J.

Introduction

The
defendants move for an order compelling the Department of
Criminal Justice Information Services (DCJIS) to comply with
a deposition subpoena requiring it to produce the
plaintiff's Criminal Offender Record Information (CORI).
(Dkt. No. 75). The plaintiff moves to quash the subpoena and
for a protective order. (Dkt. No. 77). After consideration,
the defendants' motion will be ALLOWED, subject to
certain limitations. The plaintiff's motion to quash will
be DENIED.

Relevant
Background

The
defendants' present motion to compel represents their
third effort to obtain the plaintiff's CORI. The Court
rejected the defendants' first two attempts. First, in
September 2016 the defendants moved for an order granting
them access to the plaintiff's CORI. (Dkt. No. 47). The
plaintiff opposed the entire motion but in reality mostly
opposed the motion to the extent it sought records more than
ten years old, including all juvenile records. (Dkt. No. 48).
The Court denied the motion without prejudice on the ground
that the proper course of action (in the Court's view)
was for the defendants to seek this information by service of
a subpoena on the DCJIS. (Dkt. Nos. 50-51).

Next,
and in response to the Court's denial, the defendants
served the DCJIS with a notice of deposition (but not a
subpoena) for the keeper of records and instructed the
putative deponent to bring the plaintiff's “entire
file.” The DCJIS responded that it would not comply
absent a court order. The plaintiff moved to quash and for a
protective order on the ground, inter alia, that the
defendants had not served the DCJIS with a subpoena. (Dkt.
No. 61). This Court concluded that a notice of deposition in
this context, unlike a subpoena, is not an enforceable court
order, notwithstanding the functional similarity between the
two. The Court concluded that there was therefore nothing for
the Court to act upon and denied the plaintiff's motion
to quash as unripe. (Dkt. No. 66).

Now,
the defendants have this time served the DCJIS with a
subpoena seeking the plaintiff's adult records (but not
his juvenile records). As before, the DCJIS objects, but it
has not moved to quash the subpoena, and it has indicated it
will comply with the subpoena if ordered by the Court.

Discussion

Under
Fed.R.Civ.P. 26, a party is entitled to discover any
non-privileged[1] matter that is relevant to any party's
claim or defense. The defendants assert here that M.G.L. c.
6, § 172 authorizes an attorney of record in a civil
litigation matter to “request [CORI information] from
the [DCJIS] for the purposes of witness impeachment or
trial strategy, ” citing Howe v. Town of North
Andover, 784 F.Supp.2d 24, 32 and M.G.L. c. 6, §
172(c). (Dkt. 76, p.1). As a point of clarification, while
this exact language does appear in Howe, it does not
appear anywhere in the current version of M.G.L. c. 6, §
172, let alone subsection (c). It appears that this language
likely has since been removed from § 172. Nevertheless,
the statute does contemplate circumstances under which
members of the public may obtain CORI information, and a
specific Massachusetts regulation explicitly contemplates
that an attorney may with a valid court order obtain from the
DCJIS a non-client's CORI. 803 C.M.R. § 2.07(3)(b)
(“[a]n attorney seeking to obtain a non-client's
CORI, beyond what is available via Open Access to CORI, for
litigation purposes shall submit a valid, signed court order
directly to DCJIS.”).

With
this background in mind, and given the defendants'
showing of the potential relevance of the plaintiff's
CORI, I find that the defendants are entitled to discover the
plaintiff's adult criminal record information from the
DCJIS. I accordingly ALLOW the defendants' motion to
compel production of the plaintiff's adult CORI, and
hereby order the DCJIS to provide to the above-named
defendants a copy of the plaintiff Mr. Kelly Harden's
CORI information. The defendants' receipt and handling of
any information provided by the DCJIS shall be subject to the
limitations contained in M.G.L. c. 6, § 178, as well as
the three additional limitations below.

First,
with respect to all CORI materials disclosed by the DCJIS to
defense counsel of record in this case, defense counsel of
record and the agents of defense counsel (members of the
office of defense counsel who are directly engaged in
assisting in the legal defense of this case, and other
persons retained by defense counsel for the purpose of
assisting in the legal defense of this case) may further
disclose such materials, or information contained therein,
only for the purpose of the legal defense of the
above-captioned case. Such permissible disclosure by defense
counsel of record and the agents of defense counsel of record
includes providing the above-referenced materials, and the
information contained therein, to the defendants for the
purpose of the legal defense of the above-captioned case.

Second,
defense counsel of record may disclose such materials, and
information contained therein, to potential witnesses only
for the purpose of the legal defense in this matter, provided
that defense counsel of record have made a good faith
determination that such disclosure is necessary to the proper
preparation of the legal defense in this case. In addition,
defense counsel of record must redact any social security
numbers, dates of birth, home addresses, names of minor
children, and financial account numbers of the plaintiff from
the copies of CORI materials shown to such witnesses.

Third,
no defendant nor any other person receiving from defense
counsel of record or the agents of defense counsel the CORI
materials, or the information contained therein, disclosed to
defense counsel by the DCJIS in this case, is permitted to
further disseminate or further disclose such materials or
information for any purpose at any time.

As
noted above, this Order relates only to the plaintiff's
adult record; the DCJIS should not produce any ...

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